Monday, October 25, 2010

Where to? Whats next?
Ukraine needs to form a "Democratic coalition" with a single goal of getting the foundation for a true independent democratic state right

Ukraine needs to rebuild the foundation stones of democracy.

It has to make a stand for set the agenda for reform.

Get the foundations right and the rest should follow. Get it wrong and the state will fall.

If the democratic coalition fails to come up with a united position then democracy in Ukraine will be a lost cause.

The coalition does not have to agree to support each other in government but it must be united in its position for democratic constitutional reform.

IT MUST ADVOCATE FROM A POSITION OF UNITY
In fulfillment and outline of some of the issues the following issues should be considered and adopted Issues that need to be agreed on.

1. Constitutional and Parliamentary reform.

The coalition needs to advocate for a Parliamentary system of governance based on European democratic models. It must also advocate a common position of reform to the parliament based on the principles of equality, fairness and effective representation.

If it wants to be a part of Europe then it needs to adopt European values and European models A parliamentary system is the only form of government that can ensure Ukraine development as a democratic state. It must abandon the Presidential system of governance.

2. Voting system

It must reject proposals to introduce a first-past-the-post voting system. Such a system is outdated and undemocratic. The method of v option must be proportional representation with preference given to a single transferable voting system

3. Parliament

The parliament must be based on an open list proportional representation with local electorates.

4. Local multi-member Electorates

Consideration should be given to establishing 45 electorates with each electorate electing non members of parliament with a 10% quota.

The method of election should be preferential Single Transferable vote using the Meek method or the wrought System of counting the vote.

5. System of governance.

The executive

Ideally the parliament should adopt a Westminster style of government where the executive is elected from and by the parliament.

6. The Head of State

The President should be elected by a constitutional majority of the Parliament with direct elections only occurring of the parliament is unable to agree on a suitable candidate.

Elections of the president should be undertaken by a single round preferential voting ballot. Voters rank in order of preference candidates of their choice. (1, 2, 3 etc) of no single candidate has an absolute majority then the candidate with the lowest vote is excluded and their votes redistributed accounting to the nominated alternative vote preference. This process repeats itself until a single candidate has 50% or more votes.

7. Powers of the Head of State

The head of state should have limited power and authority (See Finland's Constitution)

A head of state should have a review oversight rill without the right of veto. They should have oversight and administrative review of the Courts/Judiciary in association with the justice Council.

The position of Ombudsman should also come under the office of the president, the appointment of ombudsman made with the consent and agreement of the parliament.

The role of the ombudsman is primarily advisory but the Ombudsman must have access to relevant documentation and right of review of government administration (Not policy).

The ombudsman can and should be able to refer matters arising form its investigations for review and action by the prosecutors office, which should act independently from the executive and possibly under the auspice of the office the president and on request by the executive in counsel. All matters referred to the prosecutor's office must be decided by the appropriate judicial court.

Most of the above issues comply with the various recommendations outlined in the PACE/Venice Commission's reports on Ukraine.

Now is the time to act any delay in formation of a consolidated point of view will see Ukraine's chance for democratic reform pass it by.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
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The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.